You are on page 1of 18

Injunction

Written by Ayesha Islam Kanta
Department of Law
Z. H. Sikder University of Science And Technology
1. Introduction

The law of injunction in our country is having its origin in the Equity Jurisprudence
inherited from England who borrowed it from Roman Law. It is basic principle of our law
that if there is a right there should be a remedy. An injunction is a specific order of the court
forbidding the commission of a wrong threatened or the continuance of a wrongful course
of action already begun. It is a well settled principle of law that interim relief can always be
granted in the aid of and as ancillary to the main relief available to the party on final
determination of his rights in a suit or any other proceeding. Therefore, a court undoubtedly
possesses the power to grant interim relief during the pendency of the suit. Temporary
injunctions are thus injunctions issued during the pendency of proceedings.

2. Definition of injunction
Maitland says, “injunction which was far more flexible and far more generally applicable,
obtained not merely certain particular field of justice, but a power of making its own
doctrines to prevail at the expense of the common law”
Lord Halsbury says, “an injunction is a judicial process whereby a party is ordered to refrain
from doing or to do a particular acts or things”
Oxford dictionary meaning of word Injunction is “a Judicial warning or a judicial order
restraining a person from an action or compelling a person to carry out a certain act.”
According to old chancery practice, an injunction may be described as a prohibitory writ
issuing out of chancery to restrain the defendant from using some legal right, the exercise of
which would be contrary to equity and conscience.
According to story, “ if one were disposed to be scrupulously critical on such a subject he
might object to the apparent contrast between justice in the first part of the sentence and
equity and good conscience in the latter. This truth is that in this connection the word has the
same identical meaning.1

3. Characteristic feature of injunction
a. It is a process of the court.
b. It is the discretionary power of the court.
c. The purpose attained thereby is control or prevention.
d. The thing restrained or prevented is a unlawful act.

1 Story’s Equity Jurisprudence, Artice 118

Page 1 of 18

Temporary injunction b. Temporary injunction A temporary injunction is an order by which a party to an action is required to refrain from doing a particular thing until the suit is disposed of or until further orders of the court. Perpetual injunction c.. The object of temporary injunction is to keep matters status quo until the question at issue between the parties is determined.4 c. and injury and prejudice likely to be caused to the defendant if the relief is granted. likely to be caused to the plaintiff if the relief is refused. K. Classification of injunction There are six type of injunction a. Gandhi.e. Object of temporary injunction The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated. 6. Prohibitory injunction 5. 2 B. In other words. Interlocutory injunction e. and are regulated by the code of civil procedure. He must show that there is a substantia question to be investigated and that matters should be preserved in status quo until the question can be finally disposed of.2 It is a kind of preventive relief. Ad interim injunction f. Equity . Temporary injunction in its nature and its sole objective is to preserve the subject matter in controversy without determining the rights of the parties and to prevent the doing of act whereby the subject matter in controversy may be endangered. Pecaya co. The court in the exercise of sound judicial discretion can grant or refuse to grant interim relief. The plaintiff must show that irreparable injury will arise to him if the injunction is not granted.M. b. TRUST and Specific Relief. They may be granted at any period of a suit. i. Ground of granting temporary injunction The following condition are essential for granting of a temporary injunction: a. 4th edition 3 Mizanur v. The paints must ascertain prima facie case.3 7. Serajuddin 33 DLR 4 Jones v.4. injury and prejudice. Mandatory injunction d.B 455 Page 2 of 18 . keeping in mind the pros and cons of the matter and striking a delicate balance between two conflicting interests. the object of making an order regarding interim relief is to evolve a workable formula to the extent called for by the demands of the situation.

the Apex Court has held that "a temporary injunction can be granted only if the person seeking injunction has a concluded right. In other words. The first rule is that the applicant must make out a prima facie case in support of the right claimed by him. (ii) balance of convenience and (iii) the injury must be of an irreparable loss that cannot be compensated in terms of money. The existence of a prima facie right and infraction of such right is a condition precedent for grant of temporary injunction. e. capable of being enforced by way of injunction. The exercise of the discretion should be in a judicial manner. the court must be satisfied that refusal to grant injunction would result in 'irreparable injury' to the party seeking relief and he needs to be protected from the consequences of apprehended injury. d. Case law In Agricultural Produce Market Committee Case. The applicant must further satisfy the court about the second condition by showing that he will suffer irreparable injury if the injunction as prayed is not granted." Prima facie case It is well settled that in granting or refusing to grant temporary injunction. Irreparable injury The existence of the prima facie case alone does not entitle the applicant for a temporary injunction. The plaintiff must gratify the court two maxims of equity- (1) He who seeks equity must do equity (2) He who comes into equity must come with clean hand . that there is a strong case for trial which needs investigation and a decision on merits and on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him. The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. The burden is on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favor. It is well settled that while granting injunction plaintiff must show: (i) existence of prima facie case. and that there is no other remedy open to him by which he can protect himself from the consequences of apprehended injury. Granting of injunction is an equitable relief and such a power can be exercised when judicial intervention is absolutely necessary to protect rights and interests of the applicant. Balance of inconvenience must be in favor of conceding the injunction. No hard and fast rule can be laid down for the guidance of the Court to that effect. It only Page 3 of 18 . The court must be satisfied that there is a bonafide dispute raised by the applicant. the Court has very wide discretion. depending upon the circumstances of each case.

the court must be satisfied that the comparative mischief. The view so expressed tentatively does not influence the final decision in the suit and such tentative view does not cause prejudice to the concerned party. or where monetary compensation is adequate relief.P. it terminates as soon as the suit in which it is granted comes to an end.C.means that the injury must be a material one.. hardship or inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it. And unless its duration is specified or vacated earlier. Page 4 of 18 .e. An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring damages. even though it may have been stated until further orders except in the case of suit for perpetual injunction wherein the order becomes permanent as part of the decree passed. laches or acquiescence or whether the applicant has not come with the clean hands or has suppressed material facts. 9. Duration of temporary injunction An order of temporary injunction takes effect only from the time when it is communicated to the party injuncted. Balance of convenience The third condition for granting interim injunction is that the balance of convenience must be in favor of the applicant. Effect of temporary injunction In interlocutory proceedings. The relief of injunction may be refused on the ground of delay. i. In other words. 8. the court takes the decision on a tentative view. pending determination by it of the preliminary issue as to the jurisdiction. The Court is empowered to grant such interim relief as it may consider necessary. which cannot be adequately compensated by damages. As per amended Sec. Others factor There are some other factors which must be considered by court while granting injunction.9-A (2) of the C.

10. 13. Specific Relief Act. b. or likely to be caused. 5 Section 54. it is necessary to compel the performance of certain acts which the court is capable of enforcing. or threatens to invade the plaintiffs right to. or from the commission of an act. To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought. 11. or enjoyment of. by the invasion. the court may grant a perpetual injunction in the following case namely5 a. c. 12. 1887 Page 5 of 18 . Perpetual injunction A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit. Example A lets certain lands to B and B contacts not to dig sand or gravel there out. property. and also to compel performance of the requisite acts. When perpetual injunction refused The following cases perpetual injunction cannot be granted a. To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought. unless such restrain is necessary to prevent a multiplicity proceedings. the defendant is thereby perpetually enjoyed from the assertion of a right. whether expressly or by implication. When the defendant invades. the court may in its discretion grant an injunction to prevent the breach complained of. d. which would be contrary to the rights of the plaintiff. e. Where the defendant is trustee of the property for the plaintiff. Where there exist no standard for ascertain the actual damage caused. Where it is probable that pecuniary compensation cannot be got for the invasion. Where the invasion is such that pecuniary compensation woud not afford adequate relief. Where the injunction is necessary to prevent a multiplicity of judicial proceedings. A may sue for an injunction to restrain B from digging in violation of this contract. Ground of granting perpetual injunction A perpetual injunction may be granted to prevent the breach of an obligation existing in favor of the applicant. b. Mandatory injunction When to prevent the breach of an obligation.

If the plaintiff stands by and allows the obstruction to be completed before he comes to the court Case law In Akter Mahal Hasna Banu v. d. showing that B has led an immoral life. B may obtain an injunction to restrain the publication. That the act of the defendant has interfered with the plaintiff’s right. Where the injury can be fairly compensated by damages. There is a legal obligation on the part of the defendant to perform certain acts. Grounds of refusing mandatory injunction a. 14. B may sue for an injunction to pull down so much of the eaves as so project. b. It is an order made at an interim stage during the trial. Where the alleged obstruction is of temporary nature. Interlocutory injunction An interlocutory injunction is a court order to compel or prevent a party from doing certain acts pending the final determination of the case. Ad interim injunction 6 46 DLR 452 Page 6 of 18 . and is usually issued to maintain the status quo until judgment can be made. b.Example a. T&T Board6 Since specific order of mandatory injunction was issued upon local officers for giving the petitioner immediate telephone connection. A build a house with eaves projecting over B’s land. threatens to publish B’s written communications with him. For non-service of notices upon the chairman and the director of the T&T Board the order of mandatory injunction passed by the subordinate judge cannot be frustrated. Grounds for granting mandatory injunction The following grounds must be noted in regard to the grant of mandatory injunction. they are bound to obey the order of the court. A. being B’s medical adviser. Notice has been given by the plaintiff to the defendant and the work is still being carried out. such as- a. 15. c. Where the balance of inconvenience is in favor of the defendant c. b.

f.’ there must be a serious question to be tried. The court finally has to consider the merits of the case. e. Page 7 of 18 . or with the sovereign acts of foreign government. To restrain person from applying to any legislative body d. unless such restrain is necessary to prevent a multiplicity of proceedings. Order 39. h. he complied the requirement. Ordinarily short notice should be issued to the defendants or respondents and only after hearing concern parties appropriate order should be passed. Prohibitory injunction Prohibitory injunction requires the other party to refrain from doing something e.g. ex-parte the proviso to Rule 3. Civil Appeal No. To stay proceedings in any criminal matter. It also puts an obligation on the party in whose favor such order is passed to communicate the order along with all relevant documents to the other side by registered post and to file an affidavit stating that. Case law The Supreme Court in Ramrameshwari Devi and ors. Vs. g. To prevent on the ground of nuisance.. To prevent a continuing breach in which the applicant has aqiesced.’ The court then has to consider where the balance of convenience lies and in order to decide this. To stay proceeding in a court not subordinate to that from which the injunction is sought. To interfere with the public duties of any department of the government. Nirmala Devi and ors. c.e. The guidelines consist of various issues to consider and are as follows. The case law has created guidelines for imposing prohibitory injunctions. There are however some exceptions. ordering the other party not to publish an article etc. Injunction when refused An injunction cannot be granted- a. 17. To prevent the breach of a contact the performance of which would not be specifically enforced. the court must consider the following. an act of which it is not reasonably clear that it will be a nuisance. b. To stay a judicial proceeding pending at the institution of the suit in which injunction is sought.” 16. whether the damages are adequate remedy and whether the respondent is adequately compensated by the applicant’s undertaking in damages. provides duty on the Court to record the reasons for its opinion as to the object of granting the injunction would be defeated by delay.P.49/2011 has held that: “the Court should be extremely careful and cautious in granting ex parte ad interim injunctions or stay orders. C.Whenever the Court does grant an injunction without notice to the opposite party i.C.

If the injunction or direction was subsequently set aside or if it is satisfied the utility of Rule 32 gets dissolved.151 of Civil Procedure Code to issue an injunction in cases not falling within Order XXXIX Rule 1 and 2. Difference between perpetual injunction and temporary injunction a. 18. Enforcement of a decree for injunction The wording as framed in Order 21.I. But Sub-rule (5) of Rule 32 shows that the Court need to resort to either of the above two courses and instead the Court can direct the judgment-debtor to perform the act required in the decree or the Court can get the said act done through some other person appointed by the Court at the cost of the judgment-debtor. k. 19. Inherent power There was a conflict of Judicial opinion on the question whether the Court could issue a temporary injunction U/s. A reading of that rule shows that the whole operation is for enforcement of the decree. Rule 32(1) would indicate that in enforcement of the decree for injunction a judgment-debtor can either be put in civil prison or his property can be attached or both the said courses can be resorted to. Seth Hiralal reported in A. B from receiving the partnership debts and effects. once the decree is enforced the judgment-debtor is free from the tentacles of Rule 32.151 of Civil Procedure Code when the case did not fall within the term of Order XXXIX Rule 1 and 2 of Civil Procedure Code. i. while a perpetual injunction can be granted only after the plaintiff has established his right. 20. Thus. in execution of a decree the Court can resort to a three-fold operation against disobedience of the judgment-debtor in order to compel him to perform the act. But. A temporary injunction may be granted at any time after the initiation of the suit. 1962 Supreme Court 527 by observing that the Court has powers U/s. When equally efficacious relief can certainly be obtained by any other usua mode of proceeding except in case of breach of trust. Where the applicant has no personal interest in the matter. Example A seeks an injunction to restrain his partner.R. It appears that A had improperly possessed himself of the books of the firm and refused B access to them. Page 8 of 18 . however that discretion should be exercised judiciously. j. However now that point is concluded by the Hon'ble Apex Court in the case of Manmohanlal Vrs. When the conduct of the applicant on his agents has been such as to disentitle him to the assistance of the court. The court will refuse the injunction.

Grounds for continuing injunction Temporary injunction should be continued where it is necessary to protect the plaintiffs right especially where the action is for sole purpose of injunction. 21. The defendant threatened or intends to remove the property to defend his creditors c. 1908. c. e. damaged. while a perpetual injunction can only be granted by a decree. 22. f. 1996 Page 9 of 18 . while a perpetual injunction restrains him forever. A person in possession of property. Situation in which temporary injunction can be granted An order of temporary injunction under cpc can be granted where a. as a general rule. perpetual injunction is a final determination of the rights of the parties and restrained the defendant forever from doing the act complained of. When the circumstances of the case are such that dissolution of injunction would amount to denial of relief to which plaintiff might show himself entitle in final hearing 24. A temporary injunction is passed by an order. the person in possession can approach the court for the equitable relief of the possession of a person who is a rank trespasser as he has no equity in his favor to ask for the relief. The effect and object of a temporary injunction is to preserve the property in dispute in status quo. Where the court is of the opinion that the interest of justice so requires. cannot be restrained from use of the property even at the instance of the rightful owner. A temporary injunction restrains the defendant for a particular time . Concluding remark and comment 7 SS Fasners v. while the temporary injunction lasts till the pendency of the suit. Injunction against a person in possession In jurisprudence possession in land is said to be three fourth of the law. Temporary injunction are regulated by the Code of Civil Procedure. The defendant is about to commit a breach of contract or other injuryof any kind. while perpetual injunction is to give effect to and protect the plaintiffs right. The property in dispute is in danger of being wasted.7 If the rightful owner threatens his peaceful possession. 23. but where the trespasser is in settled possession of the property he cannot be ousted by the true owner except by recourse of law. while perpetual injunctions are regulated by section 52. Shaailesh . A right full owner has always the right to evict a trespasser without recourse to law. b. d. alienated or wrongfully sold in execution of a decree b. 53 of Specific Relief Act. d.

judiciously and on sound legal principles. Appeal. The grant of injunction is in the nature of equitable relief. However.The grant of injunction is a purely discretionary. injunction cannot be granted. It is well settled that no interim injunction would be issued if final relief cannot be granted. An injunction is ther2efore only valid when the opponent has been served with the court order. 25. though the discretion is to be sound and reasonably guided by Judicial Principles. This discretion. the conduct of the parties. should be exercised reasonably. the discretion has to be exercised in a judicious manner and in accordance with the provisions relating to the grant of injunction contained in the specific Relief Act. but its denial is within the discretion of the court. Injunctive relief is not a matter of right. Injunction should not be lightly granted as it adversely affects the other side. The service of temporary injunction order on opponent is necessary. Revision and Reference Page 10 of 18 . possibility of adequate relief by way of damages. and the possibility of enforcing its order. The power to grant a temporary injunction is at the discretion of the court. Such conditions. When plaintiff has no personal interest in the matter. however. The general rule is that grant of an injunction is a matter of discretion of the court and it cannot be claimed as of right. Whether or not an injunction will be granted varies with the facts of each case. must be reasonable so as not to make it impossible for the party to comply with the same and thereby virtually denying the relief which be would otherwise be ordinarily entitled to. Conclusion An injunction is an equitable remedy and as such attracts the application of the maxim that he who seeks equity must do equity. Granting of injunction is entirely in the discretion of the Court. however. and the court has undoubtedly power to impose such terms and conditions as it thinks fit. The Court may grant or refuse to grant the same taking into account various factors like the balance of convenience. Review.

the right to appeal is a statutory right and any such right must have the express authority of a law. be compared and distinguished from a right to file a suit. Any person who is bound by the decree and decree would operate res judicata against him. but it may be defined as the judicial examination of the decision by a higher court of the decision of an inferior court. An appeal is a continuation of the suit filed. An auction purchaser from an order in execution of a decree to set aside the same on the grounds of fraud. b. Phoolan Devi 9 8 AIR 1995 Delhi 316 9 AIR 1995 Delhi 316 Page 11 of 18 . Who can file appeal? a. it is a complaint made to the higher court that the decree passed by the lower court is unsound and wrong. at this juncture.1. It is a vested right and accrues to the litigant and exists as on and from the date the commences. It is thus a remedy provided by law forgetting the decree of the lower court set aside. In other words. who is adversely affected by the decree or the transferee of interest of such party has been adversely affected by the decree provided his name was entered into record of suit. It means removal of a cause from an inferior to a superior court for the purpose of testing the soundness of the decision of the inferior court. however. Any party to the suit. Ltd. 3. The right to sue or to file a suit is. As said.8 Case law Kaleidoscope India Pvt. Introduction Any person who feels aggrieved by any decree or order of the court may prefer an appeal in the superior court if the appeal is provided against that decree or order. It is a complaint made to the higher court and that the decree passed by the lower court is unsound and wrong. Definition and meaning The expression “appeal” has not been defined in the code. 2. Appeal is a judicial examination of the decision of a lower court by the higher court. The right to appeal must. V. It is enough that no statute expressly bars the institution of such suit. an inherent right and no express authorization from any statute may be required to institute a suit. An appeal is a creature of the statute and there is no right of appeal unless it is given clearly and in express terms. c. A right to appeal is not a natural or an inherent right.

d. as follows: a. or (b) Has sentenced a person to death or to 62 Imprisonment for life. To remand a case. decree order or sentence of the high court division shall lie as of right where the high court division- (a) Certifies that the case involves a substantial question of law as to the interpretation of this constitution . b.In this case. To determine a case finally. Subsequently. Session Judge permitted the exhibition of film in abroad. decrees. an appellate court shall have power a. 4. Where appeal lies (1).Powers of appellate court Subject to such conditions and limitations as may be prescribed. to the high court division in any other case.An appeal from a decree or order of a joint district judge shell lie- a. (4) An appeal from a decree or order of a district judge or additional district judge shall lie to the high court division. Page 12 of 18 . or (c) Has imposed punishment on a person for contempt of that division. (3). c. the Trial Court judge prohibited the exhibition of film both in India and abroad. (2)An appeal from a decree or order of a senior assistant judge or an assistant judge shall lie to the district judge. Where the function of receiving any appeals which lie to the district judge under sub-section (1) or sub-section (2) has been assigned to an additional district judge the appeals may be preferred to the additional district judge. To frame issues and refer them for trial. It was reversed by division bench saying that its not proper on the part of judge as he entertained the suit on which party has no locus standi. a party who moved in appeal did not have locus standi. orders or sentences of the high court division. to the district judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five lac taka and b. Jurisdiction of appellate division Article-103 of the constitution of Bangladesh deals with the jurisdiction of appellate division. and in such other cases as may be provided for by Act of parliament. An appeal to the appellate division from a judgment. b. The appellate division shall have jurisdiction to hear and determine appeals from judgments. 5 . 6. To take additional evidence or to require such evidence to be taken.

decree. The grounds on which the powers of revision and review can be exercised are different. while the ground of review may be (a) The discovery of new and important matter or evidence. The mere fact that the appellant may lose and may not pay the costs or that he is an undischarged bankrupt or that he is a poor man from whom it would be difficult to recover the costs or that a relation of the appellant is financing the litigation or that the appellant has well-to-do relatives who can pay the decretal amount is no ground of passing an order under the rule. b. or illegal or irregular exercise of jurisdiction. Difference between appeal. which is not so in the case of review. but review can be made even when appeal lies to the High Court therein. or (c) any other sufficient reason. Apart from these the appellate division shall also have power to issue such directions. 7. The power of revision is exercised by the court superior to the court which decided the case but the power of review is exercised by the very court which passed the decree or order. Page 13 of 18 . review.. The power of revision is conferred on the High Court only. viz. decrees or writs as may be necessary for doing complete justice in any cause or matter pending before it. 8. d. An appeal to the appellate division for a judgment. The ground for revision relates to jurisdiction. Any court can review its judgment. Parliament may be law declare that the provisions of this article shall apply in relation to any other court or tribunal as they apply in relation to the high court division. c. including orders for the purpose of securing the attendance or any person or the discovery or production of any document. revision and reference Revision and Review of Judgment: a. (b) Some apparent mistake or error on the face of the record. c. Grounds of demanding security It is the discretion of the appellate court to demand security costs. Great caution is to be exercised in ordering security for costs and there should be very satisfactory ground for such an order. Revisional powers by the High Court can be exercised only in a case when there is no appeal to the High Court. d. want of jurisdiction. failure to exercise a jurisdiction. order or sentence of the high court division in a case to which clause (2) does not apply shall lie only if the appellate division grants leave to appeal.

which may not necessarily be a High Court. c. but the power is discretionary. f. In revision the High Court can. Appeal and Revision a. It is only a privilege. Reference is always made to the High Court. b. but an application for revision lies only the High Court. The High Court has a right to bring the proper parties before the Court at any time. of its own accord. No appeal lies from an order made in the exercise of revisional jurisdiction. The grounds of appeal are wider than the grounds of reference. An appeal abates if the legal representatives of a deceased party are not brought on the record within the time allowed by law. but the order granting review is appealable. c. send for the case. A right of appeal is a substantive right given by statute. A revision does not abate in case of the death of a party even if the legal representatives are not brought on the record. while the power of reference is vested in the court. An appeal lies to a superior court. A party may move the High Court to invoke its revisional jurisdiction or the High Court may of its own motion exercise revisional jurisdiction. There is no right of revision. A right of appeal is a right conferred on the suitor. appeal or execution proceeding in order to enable the court to arrive at a correct conclusion. d.e. Reference is made in a pending suit. Appeal and Reference: a. b. Page 14 of 18 .An appeal lies only from appealable orders and decree. while an appeal is preferred after the decree is passed or an appealable order is made. but for review an application has to be made by the aggrieved party. while an appeal is preferred to a superior court which need not necessarily be High Court. but an application for revision can be made only when the relief by way of appeal to the High Court is not available. d.

e. An essential distinction between an appeal and a revision is based on differences implicit in the said two expressions. Page 15 of 18 .In revisional matters the High Court may decline to interfere if it is satisfied that substantial Justice has been done. it may determine issues of fact where such issues have not been determined provided that the evidence on the record is sufficient for such determination. or the High Court may sua motu send for the case and examine the record. But on questions of law in second appeal. c. The High Court can move of its own accord in exercising revisional jurisdiction. The grounds of revision are. A second appeal lies to the High Court from every decree passed in appeal by a subordinate court only if the High Court is satisfied that the case involves a substantial question of law. Although no second appeal can be preferred on a question of fact yet when such an appeal is already before the High Court. no discretion vests in the High Court and it has no right to decide merely on equitable grounds. however. f.The Court will not in its revisional jurisdiction enter into merits of the case however erroneous the decision of the lower court is on an issue of law or of fact but will interfere only to see that requirements of law have been properly obeyed by the court whose order is the subject of revision. An application in revision can lie only on the ground of jurisdiction. and the High Court in exercise of its revisional jurisdiction is not a court of appeal on a question of law or fact. On the other hand. They relate to jurisdiction. the party aggrieved moves the High Court in revision for the exercise of its revisional jurisdiction. different.The grounds of appeal and revision are different. b. Reference and Revision: a. d.The revisional powers of the High Court can be invoked in cases which no appeal or second appeal lies to the High Court. Section 115 does not require that there should be an application in revision. In case of appeal there must be a memorandum of appeal filed before the same can be considered by the appellate court. In reference the case is referred to the High Court by a court subordinate to it. g. This is not so in second appeal. Second Appeal and Revision: a. In an appeal the court has the power to decide both questions of fact and law.

An application for review lies to the same court while an appeal lies to a higher court. c. d. appeal or execution proceedings. Review once a court passes a decree. The ground for reference is the entertainment of some reasonable doubt by the Court trying the suit. while application for review is made to the court after it has passed the decree or made the order.b. c. Reference and Review: a. appeal or executing the decree with regard to a question of law or usage having the force of law. some apparent mistake or error on the face of the record or any other sufficient reason.In reference the subordinate court refers the case to the High Court while in review an application is made by the aggrieved party. b.The main object of granting a review of judgment is reconsideration of the same matter by the same Judge.The grounds of review are narrower than the grounds of appeal. viz. Reference is made during the pendency of the suit. Review and Appeal: a. The decision caanot be reopened and the matter cannot be reheard by the same judge or his successor. except on review.The High Court alone can decide matters on reference while an application for review is made to the court which passed the decree or made the order. d. failure to exercise a jurisdiction or illegal or irregular exercise of jurisdiction. The ground for revision. Reference is made by the court trying the suit. The grounds of review may be the discovery of new and important matter or evidence. while an appeal is heard by another Judge. on the other hand. Page 16 of 18 . want of jurisdiction. it becomes functus officio. but there is second appeal on a substantial question of law 9.. b. relates to jurisdiction.The grounds of reference and review are different. appeal or executing the decree when it entertains reasonable doubt with regard to any question of law or usage having the force of law.There is no second review.

some important aspect of the matter has not been considered that a review petition will lie. It is not because a conclusion is wrong but because something obvious has been overlooked. Application by stranger to set aside an ex party decree on the ground of fraud and cllution is competent if he is vitally interested in the subject matter. 10 Mia Lutfi Hossain v. Since a decree or order passed in a suit where judgement are made in personam does not bind a thirt party. 10. The object of review is neither to enable a court to re hear the matter or write a second judgement or to give innings to the party who has lost the battle because of his negligence or indifference. 12.10 A review of a judgement is a serious step and reluctant resort to it is proper only where glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Grounds of review Review of a decree is permissible on the following ground: a. Bangladesh DLR 51 Page 17 of 18 . the court may review it under its inherent power. he cannot be said to be aggrieved and he cannot prefere a review application. A review application in representative suit cannot be filed by a person who is not a party to the suit. Who can file review application Any party aggrieved by a decree or order can file review petition. A review is not an appeal in disguise. Discovery of new or important matter or evidence which after due exercise of diligence was not in the knowledge of the petitioner or could not be produced by him when the decree or order was passes. But a person who is not a party to the decree or order cannot apply for review as the decree or order is not binding on him. However where a third party is affected by a decree or order. 11.However the power of review is not an inherent power and must be conferred by law expressly or by necessary implication. Scope of the review A power of review should not be likened with the appellate power which enables a court to correct all errors communicated by the subordinate court.

b. Conclusion To conclude that appeal is a substantive right. c. The question as to whether the appeal is competent or not can only be decided by the court hearing the appeal. and it is a matter inter parties. Page 18 of 18 . The right of appeal is a creation of statute. 13. Appeal only lies against a decree and not against Judgment. Appeal may be filed against original or appellate decree passed by a court subordinate to High Court. Any other sufficient cause. Error apparent on the face of the record.